1980 Piper Turbo Arrow IV, PA-28RT-201T
The Pilot and the FAA: Your Constitutional Rights
Edited from "The FAA Wants to Talk to Me"
Authored by Kathy Yodice, Esq., Counsel to AOPA
AOPA Online 3/28/2014 (With Permission)
Guiding Principles for Responding to the FAA
What should a pilot do when the FAA "wants to talk?" The request for dialogue might come in a letter or a telephone call from an FAA inspector. It could be a controller’s question to you over the radio or a request that you telephone the tower after landing. Whenever the FAA wants to initiate a conversation to explain some incident involving your flying activities, you need to be careful when acquiescing. Here are guiding principles.
Before responding to the FAA in any way, take the opportunity to reflect on what happened to cause the FAA’s inquiry and what your rights and options may be. One’s initial instinct may be to tell the FAA everything he/she knows, and speculate about what happened, but this can be exactly the wrong thing to do.
Further, if a response is required or warranted, whatever response you give to the FAA should be appropriate in scope, truthful, and not misleading. In most cases, you have no obligation to say anything or to provide anything to the FAA; and in those limited circumstances when you are required to respond to the FAA, e.g., produce your pilot certificate, or FAA medical certificate, there is usually time to gather yourself together to prepare a proper response. In other words, take a deep breath, and seek legal counsel.
If you are a participant in AOPA’s Pilot Protection Services, which includes the Legal Services Plan, you are entitled to legal consultation for any alleged FAA violations, so by all means, first give AOPA a call at (800) 872-2672 to discuss the situation. For the potential of a future event, the plan is merited for this reason alone.
When Are You Obligated to Respond?
Two circumstances within FAA regulations impose on you a duty to respond in
writing or in person: when you experience an in-flight emergency, and when you
are requested to present your certificates or logbooks for inspection.
In the first circumstance, if a pilot experiences an emergency that requires a pilot to deviate from the regulations or that results in air traffic control giving the pilot priority, then FAR 91.3(c) and 91.123(d) require that the pilot submit a written statement to the FAA, but only if requested to do so by the FAA. If the FAA does not request a report, there is no requirement to submit one.
In the second circumstance, if the FAA makes a reasonable request to see your pilot certificate, your medical certificate or photo ID, or to see your pilot logbook or your aircraft maintenance records, then FAR 61.51(i) and 91.417(c) require you to make this information available to the FAA. In addition, although not specifically requiring presentation, FAR 91.203 requires that you carry on board your aircraft an appropriate and current airworthiness certificate and an effective U.S. registration certificate.
Otherwise, if the FAA contacts you for information about an incident, it is your decision whether to respond; and if you respond, it is usually within your control as to the quantity of information you provide to the FAA. There is no requirement to answer the FAA and give it any information, and there is nothing the FAA can do against you for failing to respond. If an FAA inspector sends you a letter of investigation and you write back, or if an FAA inspector calls you and you speak with the inspector, or if a controller asks you about a possible deviation and you discuss this with the controller, then any information that you provide will be used in the FAA’s investigation of the matter. So, if there is a dispute as to the facts, or if the FAA might have some trouble establishing some element of proof necessary to establish a violation, you will want to think hard about what to say, or not say. Your 5th Amendment rights are alive and well here.
Even if there is no question as to the facts or the FAA’s ability to establish a violation easily, or you have information that reliably contradicts the FAA’s position about the matter, then although there may be less risk, and more advantage, to speaking with the FAA, get the advice of counsel before responding. Knowing the difference is difficult. Knowing the nuances of the FAA’s different enforcement programs and policies, such as the FAA’s Enforcement Decision Tool, the Aviation Safety Program, the Remedial Training Program, and the "Ticket" Program, is important. Don't guess on this, get legal counsel.
At the core of all of this is the notion to think before you act and be cognizant of your regulatory responsibilities and the possible consequences of your actions. Make an informed assessment and decision. We want to trust the FAA to help guide us and to do the fair thing when something happens, but that sometimes takes a little thinking and a little planning on our part to be sure we’re not making matters worse for ourselves. An FAA investigator may behave just like an FBI agent, and an FAA attorney is virtually a federal prosecutor duty bound to represent the FAA zealously as it should be.
Thus, a competent lawyer will always advise you to remain silent. In 1949, Justice Robert Jackson of the U.S. Supreme Court observed that under our adversary system, a lawyer’s sole duty is to protect his client—regardless of guilt—and in such a capacity he owes no duty whatever to help society solve its crime problem. "Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." Watts v. State of Indiana, 338 U.S. 49, 59 (1949)(Jackson, J., concurring). For me that legal mindset applies just as forcefully in the context of an FAA investigation.
Before responding to the FAA in any way, take the opportunity to reflect on what happened to cause the FAA’s inquiry and what your rights and options may be. One’s initial instinct may be to tell the FAA everything he/she knows, and speculate about what happened, but this can be exactly the wrong thing to do.
Further, if a response is required or warranted, whatever response you give to the FAA should be appropriate in scope, truthful, and not misleading. In most cases, you have no obligation to say anything or to provide anything to the FAA; and in those limited circumstances when you are required to respond to the FAA, e.g., produce your pilot certificate, or FAA medical certificate, there is usually time to gather yourself together to prepare a proper response. In other words, take a deep breath, and seek legal counsel.
If you are a participant in AOPA’s Pilot Protection Services, which includes the Legal Services Plan, you are entitled to legal consultation for any alleged FAA violations, so by all means, first give AOPA a call at (800) 872-2672 to discuss the situation. For the potential of a future event, the plan is merited for this reason alone.
When Are You Obligated to Respond?
Two circumstances within FAA regulations impose on you a duty to respond in
writing or in person: when you experience an in-flight emergency, and when you
are requested to present your certificates or logbooks for inspection.
In the first circumstance, if a pilot experiences an emergency that requires a pilot to deviate from the regulations or that results in air traffic control giving the pilot priority, then FAR 91.3(c) and 91.123(d) require that the pilot submit a written statement to the FAA, but only if requested to do so by the FAA. If the FAA does not request a report, there is no requirement to submit one.
In the second circumstance, if the FAA makes a reasonable request to see your pilot certificate, your medical certificate or photo ID, or to see your pilot logbook or your aircraft maintenance records, then FAR 61.51(i) and 91.417(c) require you to make this information available to the FAA. In addition, although not specifically requiring presentation, FAR 91.203 requires that you carry on board your aircraft an appropriate and current airworthiness certificate and an effective U.S. registration certificate.
Otherwise, if the FAA contacts you for information about an incident, it is your decision whether to respond; and if you respond, it is usually within your control as to the quantity of information you provide to the FAA. There is no requirement to answer the FAA and give it any information, and there is nothing the FAA can do against you for failing to respond. If an FAA inspector sends you a letter of investigation and you write back, or if an FAA inspector calls you and you speak with the inspector, or if a controller asks you about a possible deviation and you discuss this with the controller, then any information that you provide will be used in the FAA’s investigation of the matter. So, if there is a dispute as to the facts, or if the FAA might have some trouble establishing some element of proof necessary to establish a violation, you will want to think hard about what to say, or not say. Your 5th Amendment rights are alive and well here.
Even if there is no question as to the facts or the FAA’s ability to establish a violation easily, or you have information that reliably contradicts the FAA’s position about the matter, then although there may be less risk, and more advantage, to speaking with the FAA, get the advice of counsel before responding. Knowing the difference is difficult. Knowing the nuances of the FAA’s different enforcement programs and policies, such as the FAA’s Enforcement Decision Tool, the Aviation Safety Program, the Remedial Training Program, and the "Ticket" Program, is important. Don't guess on this, get legal counsel.
At the core of all of this is the notion to think before you act and be cognizant of your regulatory responsibilities and the possible consequences of your actions. Make an informed assessment and decision. We want to trust the FAA to help guide us and to do the fair thing when something happens, but that sometimes takes a little thinking and a little planning on our part to be sure we’re not making matters worse for ourselves. An FAA investigator may behave just like an FBI agent, and an FAA attorney is virtually a federal prosecutor duty bound to represent the FAA zealously as it should be.
Thus, a competent lawyer will always advise you to remain silent. In 1949, Justice Robert Jackson of the U.S. Supreme Court observed that under our adversary system, a lawyer’s sole duty is to protect his client—regardless of guilt—and in such a capacity he owes no duty whatever to help society solve its crime problem. "Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." Watts v. State of Indiana, 338 U.S. 49, 59 (1949)(Jackson, J., concurring). For me that legal mindset applies just as forcefully in the context of an FAA investigation.
The AOPA Legal Services Plan
From 2006 - 2018, I was an attorney in AOPA’s Legal Services Plan. In 2021, for $118 per year, any AOPA member can obtain legal services in the context of aviation including defense in an FAA enforcement action to suspend/revoke your pilot certificate, NTSB appeal, reporting an aircraft accident, review of aircraft purchase documents, and civil court proceedings. The FAA has legal counsel, why shouldn’t you?
For more information go to http://www.aopa.org/. I have counseled a couple of clients who for $49 per year [2009 dollars] would have saved at least $2,000.00 in attorney fees. Like any other insurance policy, your coverage has to predate an incident. I get no compensation from selling AOPA’s Legal Services Plan as I am doing here. I just happen to believe that for a non-attorney pilot, subscribing to the plan is a no-brainer.
For more information go to http://www.aopa.org/. I have counseled a couple of clients who for $49 per year [2009 dollars] would have saved at least $2,000.00 in attorney fees. Like any other insurance policy, your coverage has to predate an incident. I get no compensation from selling AOPA’s Legal Services Plan as I am doing here. I just happen to believe that for a non-attorney pilot, subscribing to the plan is a no-brainer.